Person v. State

• Decision Date: 20 February 1996
• Docket Number: No. 49A04-9503-CR-99,49A04-9503-CR-99
• Citation: 661 N.E.2d 587
• Parties: John W. PERSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 587

661 N.E.2d 587

John W. PERSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A04-9503-CR-99.

Court of Appeals of Indiana.

Feb. 20, 1996.

Transfer Denied April 17, 1996.

Appeal from the Marion Municipal Court; The Honorable Susan Macey Thompson, Judge; Cause No. 49F19-9409-CM-119347.

William F. Thoms, Jr., Indianapolis, for Appellant.

Pamela Carter, Attorney General, Jodi Kathryn Rowe, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Defendant-Appellant John W. Person (Person) appeals following his conviction for dangerous possession of a handgun, a Class A misdemeanor ¹.

We affirm.

ISSUES

Two issues are raised for our review:

1. Whether the State presented sufficient evidence to support Person's conviction of dangerous possession of a handgun.

2. Whether IND.CODE 35-47-10-5 and I.C. 35-47-10-8 (1995 Supp.) are unconstitutional pursuant to Sections 16, 18 and 23 of the Indiana Constitution.

FACTS AND PROCEDURAL HISTORY

On September 16, 1994, while on routine patrol of the Laurelwood Apartment Complex, I.P.D. Officer Roger Gammon observed a brown Cadillac run a stop sign at the intersection of South Teakwood Drive and South Carson Avenue, and then drive left of center on South Carson. Officer Gammon stopped the vehicle shortly thereafter in the 2400 block of South Shelby Street. As he approached the vehicle, he observed Person, who was the left rear passenger, put his right hand behind his back for no apparent reason. For the officer's own personal protection, he then ordered Person to exit the vehicle. After Person exited the vehicle, Officer Gammon observed the white handle of a stainless steel semi-automatic handgun in the left rear seat of the vehicle. Person, the driver, and the front passenger who was also the owner of the vehicle, were arrested at the scene.

On September 20, 1994, Person was charged with dangerous possession of a handgun as a Class A misdemeanor. Person moved to dismiss the charge arguing in pertinent part that the statute under which he was charged was unconstitutional. The court denied the motion and the case proceeded to trial. Following a bench trial on November 29, 1994, Person was found guilty as charged. He was sentenced to 60 days with 55 days suspended, one year probation, project life and 100 hours community service work. His executed sentence therefore was five days.

Person appeals.

DISCUSSION AND DECISION

I. Sufficiency of the Evidence

Person first contends that the evidence was insufficient to support his conviction. The appellate standard by which we review sufficiency of the evidence claims is well-settled. We will neither reweigh the evidence nor resolve questions of witness credibility, but will look only to the evidence most favorable to the judgment, along with all reasonable inferences to be drawn therefrom. Green v. State, 650 N.E.2d 307, 309 (Ind.Ct.App.1995).

I.C. 35-47-10-5 provides as follows:

A child who knowingly, intentionally, or recklessly:

(1) possesses a handgun for any purpose other than a purpose described in section 1 of this chapter ²; or

(2) provides a handgun to another child with or without remuneration;

commits dangerous possession of a handgun, a Class A misdemeanor. However, the offense is a Class C felony if the child has a prior conviction under this section.

"Child" is defined as a person who is less than eighteen (18) years of age. I.C. 35-47-10-3 (1995 Supp.).

Specifically, Person contends that the State failed to prove beyond a reasonable doubt that he constructively possessed the gun. Constructive possession is established by showing that the defendant has the intent and capability to maintain dominion and control over the contraband. Godar v. State, 643 N.E.2d 12, 14 (Ind.Ct.App.1994), reh'g denied, trans. denied. Essentially, in cases where the accused has exclusive possession of the premises on which the contraband is found, an inference is permitted that he or she knew of the presence of contraband and was capable of controlling it. Moore v. State, 613 N.E.2d 849, 853 (Ind.Ct.App.1993). However, when possession of the premises is non-exclusive, as here, the inference is not permitted absent some additional circumstances indicating knowledge of the presence of the contraband and the ability to control it. Moore, 613 N.E.2d at 853. Among the often recognized "additional circumstances" are (1) incriminating statements by the defendant; (2) attempted flight or furtive gestures; (3) a drug manufacturing setting; (4) proximity of the defendant to the contraband; (5) contraband is in plain view; and (6) location of the contraband is in close proximity to items owned by the defendant. Id.

The evidence most favorable to the verdict reveals that Person, then 17 years old, was in the rear left passenger seat of Antonio Kinnebrew's vehicle when the vehicle was stopped by Officer Gammon. There were three individuals in the vehicle: Person, Kinnebrew, who was the front seat passenger and registered owner of the vehicle, and Kenneth Grundy, who was driving the vehicle. As Officer Gammon approached the vehicle, he observed Person put his right hand behind his back. Officer Gammon ordered Person to exit the vehicle. Officer Gammon then observed the handle of a .25 caliber semi-automatic handgun sticking out of the rear seat. The gun was loaded with three live rounds. Person testified at trial that he had no knowledge that there was a gun in the car until the car was stopped by police, and Kinnebrew tossed the gun into the back seat. We will not reweigh the evidence and we will not second-guess the trial court's determination regarding witness credibility. Green, 650 N.E.2d at 309. The evidence sufficiently supports the trial court's judgment that Person had the capability and intent to exercise dominion and control over the handgun, and thus "possessed" it within the meaning of I.C. 35-47-10-5. Person was in the vehicle in which the gun was found, was in close proximity to the handgun, and engaged in furtive gestures. Person's furtive gesture of putting his hand behind his back suggests that he attempted to hide the gun in the back seat cushion. The State presented sufficient evidence to support Person's conviction beyond a reasonable doubt.

II. Constitutionality of I.C. 35-47-10-5

and I.C. 35-47-10-8

Person challenges the constitutionality of I.C. 35-47-10-5 and I.C. 35-47-10-8 on several grounds. Specifically, he argues that the statutes violate Article I, Sections 16 and 18 of the Indiana Constitution. Person further contends that the statutes violate the Privileges and Immunities Clause of Article I, Section 23 of the Indiana Constitution.

A. The Legislative Scheme

During the 1994 legislative session, the Indiana legislature passed Public Law 140, section 12, consequently adding a chapter entitled Children and Handguns to I.C. 35-47. The new chapter proscribes certain conduct concerning children and handguns. I.C 35-47-10-5 became effective March 15, 1994, making it a Class A misdemeanor for a person under the age of 18 to possess a handgun, except under the limited circumstances noted in footnote 2 supra. I.C. 35-47-10-8 provides that "[i]n addition to any criminal penalty imposed for an offense under this chapter, the court shall order incarceration for five (5) consecutive days in an appropriate facility" and shall order the 5 days to be served within 2 weeks of sentencing. I.C. 35-47-10-8 further provides that "[n]otwithstanding IC 35-50-6, a person does not earn credit time while serving an additional five (5) day term of imprisonment imposed by a court under this section."

I.C. 31-6-2-1.1 (1995 Supp.) became effective July 1, 1994, and was made applicable to crimes committed after that date, and provides in pertinent part that criminal courts, rather than juvenile courts as in the past, have jurisdiction over a child for alleged violations of the newly enacted children with handguns chapter, I.C. 35-47-10, if the child was 16 or over at the time of the violation.

Also of significance to this case is I.C. 35-47-2-1 (1993) which is the statutory section generally proscribing carrying handguns without a license. ³ I.C. 35-47-2-23 (1995 Supp.) provides that a person who violates I.C. 35-47-2-1 commits a Class A misdemeanor. However, the offense is a Class C felony if certain circumstances exist. ⁴

B. Constitutional Analysis

Person argues that I.C. 35-47-2-1, which can be committed by either a child or an adult, and I.C. 35-47-10-5, which can only be committed by a child, proscribe the same conduct, yet I.C. 35-47-10-8 imposes a more severe penalty for a child. Thus, Person asserts that the additional five day penalty imposed by I.C. 35-47-10-8 is a disproportionate penalty, amounts to vindictive justice and a denial of equal protection of the laws and therefore is violative of Article I, Sections 16, 18, and 23 of the Indiana Constitution. He contends that the fact that he is a "child" subjects him to a more severe penalty than if he were an adult who committed the same essential crime. Person further points to the jurisdictional change in the juvenile code which now mandates that children over age 16 who are charged with violations of I.C. 35-47-2-1 (carrying a handgun without a license) or I.C. 35-47-10-5 (child in possession of a handgun) are to be treated as adults with the adult criminal courts having jurisdiction.

First, we note that a child convicted of dangerous possession of a handgun will not necessarily be sentenced more harshly than an adult convicted of carrying a handgun without a license. An adult convicted of carrying a handgun without a license as a Class A misdemeanor is subject to a possible penalty of a fixed term of up to one year incarceration in addition to a fine of up to five thousand dollars. I.C. 35-50-3-2 (1993). Because children who are convicted of dangerous possession of a handgun are tried and sentenced...